Non-compliance with attendance requirements – a breach of the Code of Conduct

An Executive Level 1 employee struggled to balance her work and family obligations and took extensive unscheduled leave both for personal ill-health and caring responsibilities. The employee’s behaviour was also unpredictable and inconsistent, including coming to work to attend a seminar when she had a medical certificate stating she was unfit for duty.

The employee’s manager became increasingly concerned about the employee’s performance, the frequency of her absences and the lack of information about her state of health and prognosis. The employee indicated she was being treated by a ‘specialist’ but provided medical certificates from her general practitioner which gave limited information.

The employee was assessed by an employer nominated medical practitioner as fit for duty, capable of complying with attendance requirements and capable of participating in a performance assessment process. Her manager issued her with a direction requiring her to:

notify absences by 9:00 am on the day of the absence

provide medical certificates for each absence on the first day of her return to work.

When the employee failed to comply with these requirements the agency commenced an investigation for suspected misconduct.

The employee was found to have breached the Code of Conduct for failing to follow directions from her manager about her attendance. The employee was found to have breached

section 13(1) of the Code of Conduct – the requirement to act with honesty and integrity in connection with employment and

section 13(5) of the Code of Conduct – the requirement to comply with a lawful and reasonable direction.

As a consequence of the Code of Conduct breach finding, the employee was reduced in classification from an Executive Level 1 to APS 6.

The employee argued she had complied with the direction and her problems at work were the result of ill health arising from being bullied and harassed by her manager.

The Merit Protection Commissioner considered the employee’s arguments lacked substance but had some concerns about the quality of the agency’s Code of Conduct decision making. These concerns were not sufficient to create procedural problems.

In particular, the agency:

Put a large amount of documentary evidence to the employee without indicating how the material was relevant to the allegations. Generally, this is poor practice which has the potential to confuse a person responding to misconduct allegations. Nevertheless, the Merit Protection Commissioner was satisfied that in this case the employee did understand and was able to make a full response.

Some of the findings of fact made by the decision maker were not supported by the evidence. In particular:

The decision maker identified some instances in which they determined the employee had failed to comply with a direction. The Merit Protection Commissioner found that in these instances the employee’s manager had requested the employee to provide medical information but did not direct her to do so.

The decision maker applied the direction retrospectively to behaviours that occurred before the direction was issued.

Notwithstanding the problems with the decision making, the Merit Protection Commissioner found that some of the original findings could be sustained and that the employee had failed to comply with the direction on a number of occasions.

The Merit Protection Commissioner found the employee’s overall behaviour could be characterised as a failure to cooperate with her manager’s reasonable requirements with respect to managing her attendance. The employee’s manager was required to spend a considerable amount of time monitoring the employee’s attendance, trying to contact the employee to find out whether she was coming to work, requesting information and reminding the employee of her obligations. Frequently the employee delayed providing the requested information or only provided partial information. In the Merit Protection Commissioner’s view, this behaviour was appropriately considered a breach of section 13(2) of the Code of Conduct – the requirement to act with care and diligence in connection with employment.

The Merit Protection Commissioner considered the employee’s misconduct to be serious. The employee had failed to respond in a professional and cooperative manner to her manager’s reasonable and appropriate attempts to manage her attendance; failed to accept responsibility for her actions; and failed to meet the leadership expectations of an Executive Level 1 as outlined in the Integrated Leadership System and the agency’s enterprise agreement.

The Merit Protection Commissioner recommended that the findings that the employee had breached the Code of Conduct be confirmed, with an additional finding that the employee had breached section 13(2) of the Code of Conduct. The Merit Protection Commissioner also recommended that the sanction of a reduction in classification be confirmed.